940 F.2d 832 (3rd Cir. 1991), 90-5312, In re TMI Litigation Cases Consol. II
|Docket Nº:||Dresser Industries, Appellants in Nos. 90-5312 and 90-5672.|
|Citation:||940 F.2d 832|
|Party Name:||In re TMI LITIGATION CASES CONSOLIDATED II. BRANNON, James T., et al., v. BABCOCK & WILCOX COMPANY, INC., et al., General Public Utilities Corporation, Metropolitan Edison Company, New Jersey Central Power & Light Company, Pennsylvania Electric Company, Babcock & Wilcox Company, McDermott Incorporated, U.E. & C.-Catalytic, and Burns & Roe Enterpris|
|Case Date:||July 26, 1991|
|Court:||United States Courts of Appeals, Court of Appeals for the Third Circuit|
Argued Feb. 7, 1991.
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John R. O'Donnell, Zarwin & Baum, Philadelphia, Pa., for appellees, Estate Arthur Tilly, Gertrude Tilly, Vincent Denoncour, Nora Denoncour.
Joseph D. Shein, Philadelphia, Pa., for appellee, Perri C. Kiick.
Louis M. Tarasi, Jr., Tarasi & Johnson, Pittsburgh, Pa., for appellees, Group A. See Docket Entry in No. 90-5312 for List of Parties.
Arnold Levin (argued), Fred S. Longer, Levin, Fishbein, Sedran & Berman, Philadelphia, Pa., Lee C. Swartz, Sandra L. Meilton, Hepford, Swartz, Menaker & Morgan, Harrisburg, Pa., for appellees, Group B. See Docket Entry in No. 90-5312 for List of Parties.
James R. Adams, Barley, Snyder, Cooper & Barber, Lancaster, Pa., for appellees, Family Style Restaurant, Skiadas Bros., Thomas E. Strauss, Inc., Gettysburg Tours, Inc., Heritage Inns, Inc., Le Smith Wholesale, Lincoln Heritage Inc., Overview Ltd., SMG Investments.
Peter J. Neeson, LaBrum & Doak, Philadelphia, Pa., for appellees, Joan A. Kichman, Charles C. Kichman, Matthew C. Kichman, Kandice M. Kichman.
William E. Chillas, Joseph F. Roda, Lancaster, Pa., for appellees, Earl Realty, Inc., Amish Homestead, Inc., One Room Schoolhouse, Homestead Gift Shop, Two Twenty-Two Corp., James Cosgrove, Glass Kitchens, Cherry Lane Mtr. Inn, Richard M. Rutt, Noah N. Martin Co., Cont. Inns of America, Pentidatillo Corp.
John G. Harkins, Jr. (argued), A.H. Wilcox, Ellen Kittredge Scott, Pepper, Hamilton & Scheets, Philadelphia, Pa. (Paul J. Mishkin, Berkeley, Cal., of counsel), for appellants, General Public Utilities Corp., Metropolitan Edison Co., Jersey Central Power & Light Co., Pennsylvania Elec. Co., Babcock & Wilcox Co., McDermott Inc., UE & C-Catalytic, Inc., Burns & Roe Enterprises Inc., Dresser Industries, Inc.
Stuart M. Gerson, Asst. Atty. Gen., James J. West, U.S. Atty., William Kanter, Peter R. Maier (argued), Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., for appellant, U.S.
Before MANSMANN, SCIRICA and HIGGINBOTHAM, Circuit Judges.
MANSMANN, Circuit Judge.
In this matter growing out of the 1979 incident at the Three Mile Island nuclear facility near Harrisburg, Pennsylvania, we are asked once again to resolve a confrontation between an assertion of federal jurisdiction over public liability actions by defendants and a challenge to that jurisdiction by plaintiffs who wish to be in the state court system. We previously visited a similar issue in Kiick v. Metropolitan Edison Co., 784 F.2d 490 (3d Cir.1986), and Stibitz v. General Pub. Util. Corp., 746 F.2d 993 (3d Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985), and concluded there that Congress did not intend that there be a federal cause of action arising under the terms of the Price-Anderson Act (codified in scattered sections of 42 U.S.C.).
Our focus here is on the constitutionality of the Price-Anderson Amendments Act of 1988, 42 U.S.C. Sec. 2011 et seq. In the Amendments Act, Congress expressly created a federal cause of action for nuclear accident claims and is alleged to have worked major changes in the landscape of public liability law.
Specifically, our review centers upon a district court order remanding certain public liability actions to the state courts in which they were originally filed or in which they might have been filed. The district court concluded that it lacked federal subject matter jurisdiction over these claims and that remand was appropriate under the terms of 28 U.S.C. Sec. 1447(c). 1 The district court reached this decision despite the fact that the Price-Anderson Amendments Act of 1988, which created the federal public liability action, specifies that the federal courts have original jurisdiction over these actions and that public liability actions filed in state courts, which have concurrent jurisdiction, are subject to removal upon the motion of a defendant, the Nuclear Regulatory Commission, or the Secretary of Health and Human Services, 42 U.S.C. Sec. 2210(n)(2).
The district court's determination with respect to subject matter jurisdiction rested not on any failure to satisfy the jurisdictional requirements of the Amendments Act but upon the court's conclusion that the Amendments Act itself was unconstitutional. Underlying the remand order was the district court's holding that Congress, in purporting to create a federal forum for public liability actions through the Amendments Act, exceeded the authority granted to it by Article III, Section 2 of the United States Constitution.
Because it believed that its order granting the plaintiffs' motion to remand involved a "controlling question of law as to which there is substantial ground for difference of opinion and that an immediate
appeal from this order may materially advance the ultimate...
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